3) Statuatory interpretation Flashcards
What is the positivist view
Law is artificial
The validity of a law depends on the CONTINGENT CRITERIA. There is not one ubiquitous law that must be followed by all societies in order for the law to be valid.
What is the natural law theory
Law is set in stone and natural in society.
The validity of law is set in stone. It is not subjective and dependent on different circumstances, it is universal and objective. If a law fails to abide by a single universal law, then it is invalid and immoral and is no longer a true law.
Why are laws difficult to make
‘The problem of uncertainty.’ We are making a law that is supposed to act as a solution, but inevitably, unforeseeable problems and loopholes WILL occur.
What is a directive word and give an example
Directive word is an imperative and there’s not an exception to it. E.g. Must, shall not (may and can’t are not directive because they are optional)
What are the 3 main methods of interpretation
- Literal rule
- Golden rule
- Mischief rule
What does the literal rule mean
The literal rule means that judges take the law/statute literally with their natural and ordinary meaning, word for word without judges own interpretation. It also should be the first law judges apply
What are some strengths of the literal rule
1) removes morality and politics from judicial decision making
2) responsibility for bad decisions passed to the political branch
3) Protects judges from accusations of bias
4) Separation of powers is upheld because Parliament makes the laws, and the judiciary interprets them exactly as they are made
5) Achieves consistency because it’s the same interpretation of the rule, same application, same results
What are some limitations of the literal rule
1) possibility of overly harsh consequences since there was no room for interpretation
2) Only achieves consistency for the easy cases, and is more difficult for complicated cases
3) Ambiguity ad absurdity cannot be investigated or flagged up so unfair decisions may be consistently seen in the prosecutions
4) Does not remove the argument, and only focuses on text as there is still uncertainty, but the literal approach simply looks at laws at a surface level
5) Words can still have multiple meanings, and the literal rule makes the false assumption that words will always have one meaning
What is another term for literalism
formalism
What does the golden rule mean
Means to look at laws with their ordinary signification, unless they produce an inconsistency or an absurdity so great that the law cannot be used in it’s original signification
What are some strengths of the golden rule
1) Avoids the law being absurd
2) Allows individual clauses to bee read alongside the act as a whole to establish consistency.
What are some weaknesses of the golden rule
1) Allows room for judicial creativity, and since the interpretation of the rule constantly differs among judges, this causes inconsistency and uncertainty.
What is the mischief rule
Suppress the mischief and advance a remedy.
The law would be investigated in the first place, and the decision would be based on that - on why the law was emplaced in the first place.
What are some strengths of the mischief rule
1) Allows judges to provide rational structure to the law - can see what the law was supposed to be a solution to
2) Reduces the need for administrative intervention - meaning you don’t have to refer back to parliament.
What are some weaknesses of the mischief rule
1) Who gets to decide what the mischief is?
2) How easy is it to extrapolate (interpret)
3) What if there are inconsistencies in the act about the purpose
4) What if multiple purposes
5) It establishes uncertainty
